October 28, 2005

Patrick Fitzgerald

by hilzoy

"Fontenelle says, "I bow before a great man, but my mind does not bow." I can add: before a humble common man in whom I perceive uprightness of character in a higher degree than I am conscious of in myself, my mind bows, whether I want it or whether I do not and hold my head ever so high that he may not overlook my superior position. Why is this? His example holds before me a law that strikes down my self-conceit when I compare it with my conduct, and I see observance of that law and hence its practicability proved before me in fact. ... Respect is a tribute that we cannot refuse to pay to merit, whether we want to or not; we may indeed withhold it outwardly, but we cannot help feeling it inwardly."

Kant, Critique of Practical Reason 5:76-7.

I watched Patrick Fitzgerald's press conference, and it was very, very impressive. For those of you who didn't see it: I am not a lawyer, but I would be very reluctant to read much of anything into what he did or didn't say. He struck me as a completely straight, decent, and principled person, who is political in the broadest and best sense (concerned with the nature and preservation of the structures that allow us to live as one society), and for that very reason recognizes that, given his role, he cannot be political in the narrower, partisan sense. He was extremely clear about what he could and could not say, according to the law, and despite the best efforts of journalists to provoke him into disclosing more than he should, he flatly refused, while being consistently gracious about it. He also explained why: because grand juries are empowered to find out information about people that it would be wrong to reveal publicly, unless that information forms the basis for an indictment. He seemed to me to be without bias: he consistently emphasized the presumption of innocence when speaking about Scooter Libby, refused to say anything at all about anyone else, and emphasized that there had been no attempt at any political interference with his investigation; but he was also eloquent about the seriousness of obstruction and perjury charges. He was not only extremely sharp and very good at explaining what was in the indictments, but also a very persuasive advocate for the rules that govern him and us.

As far as I could tell he was, in short, a completely honorable man, and a very skilled and competent one. He was given a job to do, and he did it to the best of his considerable abilities, without leaking or spinning, without any apparent concerns about going after powerful people, and also without any apparent desire to carve their notches on his gun. It has been amusing watching various pundits try to figure out what to make of someone who is simply not interested in what they say about him: it seems to leave them completely at sea. Similarly, he has left both Democrats and Republicans who might otherwise complain about the outcome of his investigation without a leg to stand on. I admire him enormously.

Think about the extraordinary temptations he must have faced: not just the obvious ones, like making whatever call he might have thought would advance his career, but the subtler ones, like self-importance, or the idea that it was important to teach a lesson or provide an example of something other than someone doing his job without fear or favor. I think it would have been incredibly hard not to allow some motive to corrupt one's work in his position: some temptation to grandiosity, or to produce an effect. It would have been easy to take yielding to that temptation to be the right thing to do: after all, how often does anyone get the sort of podium that Patrick Fitzgerald just had? And wouldn't it seem natural to try to use it for some purpose beyond doing his job? And yet, as far as I could tell, he did not. He just did his job as well as he possibly could. In the midst of endless verbiage, his silence has been stunning; and in the midst of so many egos on parade, he managed to combine complete self-possession with an equally complete absence of self-importance.

Comments

Sometimes first impressions are accurate impressions. I would bet that today was the first time you, like me, hasve ever come across Patrick Fitzgerald as anything other than a name in a news artile or as a refernce to score a political point by a pundit.

I agree he made a very good first impression.

However: Part of how I judge a man the on public payroll is on well he does the job he was hired to do. He was hired to investigate the outing of a covert, or classified, CIA agent thereby putting our
nation at risk.

If he fails to bring charges on this issue because he does not believe he can win the case he is failing all of us. An agent was outed. His duty is to bring the charges against whoever outed her and to let the jury decide if it was a crime or not. It is too important to our nations security to allow this decision to rest soley with Fitzgerald.

Even if not convicted the trial itself will stand as a warning to all those who would take the security of our country so lightly in the future.

It is amazing to compare him to that hack, Starr, who was never a prosecutor and did not know how to do the job. Plus Starr surrounded himself with second raters (he mostly inherited them and had difficulty hiring or keeping better people) -- some of them were ethically challenged.

Its too bad Fitz doesn't have the authority to issue a general report at some point regarding what he found. However, the upcoming trials will result in much of the grand jury info becoming public.

The fact that there are indictments plus further investigating only prolongs the political torture from this thing.

I disagree, Ken. Bringing charges against someone he doesn't believe he can convict is not his duty. It might be tempting, it might be a "good" in some other sense (though I don't even know about that), but it is not Fitzgerald's duty.

Further, Fitzgerald made a damning statement about Libby when he said that Libby's lies were a major problem in making the case for the commission of the national security crimes.

I think the idea that a prosecutor's duty is to "make a point" or act now, worry about the jury verdict later is what got us all that time with Ken Starr. Fitzgerald put Ken Starr to shame today, and that's how it should be.

Peter Fitzgerald, the Republican ex-Senator from IL who appointed Patrick Fitzgerald (no relation) to investigate Republican ex-Governor of IL, is a hellofa good guy, as well, as a matter of fact, everything a US Senator should be. Barack Obama shows promise. Let's hope Barack turns out to be as good as his predecessor.

Even if not convicted the trial itself will stand as a warning to all those who would take the security of our country so lightly in the future.

Sorry, this will never convince any average American that Democrats have more credibility on defense issues. They have to make a better case than "Scooter Libby is a bad guy". Anybody remember Sandy Berger and something about Top Secret:Code Name documents?

Lets give proper props to Ashcroft's DOJ for finally doing the right thing and putting Fitz on the case, too. An all-to-rare instance of honest government from the present crew (though I think Ashcroft is/was in fact a straight-shooter in general).

If he fails to bring charges on this issue because he does not believe he can win the case he is failing all of us.

The obstruction of justice charges against Libby were not some consolation prize gimme. 'Obstruction of justice' means, in this case, that the investigation of the underlying charges - outing a CIA agent - could not be completed due to Libby's lies. That's why obstruction of justice is a real crime, not a "technicality."

And Fitzgerald is a prosecutor to the core, not a political gamer. If he can't prove a charge by GJ standards, he knows he sure can't prove it by trial standards.

He doesn't want to bring charges unless he's convinced he can get a conviction. He wants convictions, not political points, not grist for spin machines. He wants perps to go to jail, not make a career of calling themselves "exonerated" because he brought charges that barely passed GJ muster.

He has Libby dead to rights on perjury and obstruction. That might just be a start, or it might be all Fitzgerald's confident enough to go with.

Walsh was a honest prosecutor, but not a strong strategist; his Iran-Contra investigation was undermined by Congress' offering immunity to the very people he was trying to turn. Ken Starr was a disgrace to the very concept of prosecutors, a partisan hack with a taste for pornography, whose only talents were for intimidation and humiliation.

Fitzgerald is so different from them, from Starr particularly, as to practically be a different species. even though I wish there had been more indictments, I have faith in his honesty, his competence, and his strategy.

For what it's worth, I don't think Sandy Berger was intentionally trying to hurt national security. Neither do I think Libby was trying to damage national security.

Andrew McCarthy's take, from The Corner:

So, while Libby may have had a bad purpose as far as the law is concerned, he did not have a purpose to do damage to the country or help an enemy. That is what the espionage act is most concerned about. Under the circumstances, he was given the benefit of the doubt on his state of mind. I think that was an appropriate exercise of restraint on Fitzgerald’s part. The charges brought are serious ones. There was no reason to bring a questionable one just to rebut a talking point about how it’s only a cover-up and not a crime.

The $10,000 fine seemed appropriate for Berger, altough I would have restricted his access to classified documents for more than 3 yrars. Certainly Libby deserves to be punished. We'll zee what is reasonable. The perjury problrm may be more severe than destroying documents in a copied, annotated, NOT ORIGINAL form.

I think the difference is that Berger was trying to help national security, and didn't do anything at all likely to harm it, while Libby was acting out of partisan motives, and quite possibly did directly damage national security. Plus I assume Berger cooperated fully with the law.

Also, please do not feel that you must let us know that you "are not a lawyer, but". Three smiley faces. You are an ethicist and a professor of philosophy and that's good enough.

Von and Sebastian never say "I'm not an ethicist, but" and then lay out a full system of ethics. They go right ahead. (Four smiley faces) Charles never writes: "I'm not the President's closest advisor, but". He advises without qualification. Slart never writes "I'm not a Floridian, but", because he is and that would be untrue. Edward never writes "Arts, smlarts, here's my take on Vermeer". Why? We know why.

After all, this is the internet where everyone is not something but has an opinion anyway.

Now regarding Plamegate, as DaveC. might say, "We shall zee" Or was that Eva Gabor?

I disagree. CaseyL basically nailed it but you should also go watch/read Fitzgerald's comments on how his investigation has proceeded. In particular the embezzlement investigation metaphor that he used.

Fitzgerald likened the case to a pitcher throwing a bean ball and the umpire having to decide whether it was intentional or not, with himself being the umpire. The natioanal interest does not stop with determining who threw sand in his face so he couldn't make the call.

The national interest, the interest of all our intellegence agencies, is to find out who threw the bean ball. WE

The natioanal interest does not stop with determining who threw sand in his face so he couldn't make the call.

The national interest, the interest of all our intellegence agencies, is to find out who threw the bean ball. WE

Except that Fitz does not have the power to act on that greater national interest -- only the more narrow interest of prosecuting crime. The "call" that he is making is this more narrow one -- can I bring a criminal case. And if he makes the judgment that he cannot, he is not supposed to issue "findings" concerning what he found or what he believed happened. In fact, he is forbidden to do so under grand jury rules (which is a good thing -- otherwise prosecutors could use the coercive power of grand juries to engage in all sorts of character asassination).

The greater national interest, as you use the term, is the responsibility of Congress in its oversight role, but the Republicans there prefer to cover up the wrongdoing rather than get to the bottom of what happened.

Hilzoy, this was the best post I have read about Fitzgerald, and given the amount of blog and press attention, that's saying a lot. I had a similar reaction to his press conference, but I couldn't have articulated it nearly so well. I felt inspired by the model of his personal conduct, separate from specifics of the case. He has acted very faithfully. The lack of ego was impressive.

Emotionaly I had the same reaction to Fitzgerald's press conference as Hilzoy. That is my gut told me to trust him, and I certainly hope our guts are right, but parsing his language closely I have some second thoughts.

In a way I agree with the Republicans here Fitzgerald should have brought charges of espionage.

QUESTION: The indictment describes Lewis Libby giving classified information concerning the identify of a CIA agent to some individuals who were not eligible to receive that information. Can you explain why that does not, in and of itself, constitute a crime?

FITZGERALD: That's a good question. And I think, knowing that he gave the information to someone who was outside the government, not entitled to receive it, and knowing that the information was classified, is not enough.

FITZGERALD: You need to know at the time that he transmitted the information, he appreciated that it was classified information, that he knew it or acted, in certain statutes, with recklessness.

(The problem with this is that Fitzgerald's own inditment shows that Scooter was well aware the information he was leaking was classified.)

(break)
But at the end of the day, I think I want to say one more thing, which is: When you do a criminal case, if you find a violation, it doesn't really, in the end, matter what statute you use if you vindicate the interest.

(Republican talking points demonstrate that just isn't so. A lot of people rolled over and went back to sleep, because they were not alerted by a sexy charge like espionage. That contributes to the damage done our national security, by encouraging Republicans to continue to demonstrate that they value the lives of inteligence sources abroad at less than nothing.)

If Mr. Libby is proven to have done what we've alleged -- convicting him of obstruction of justice, perjury and false statements -- very serious felonies -- will vindicate the interest of the public in making sure he's held accountable.

(As I pointed out above that aint necissisarily so. Also a pardon is likely to wipe out any benifit attending putting Scooter in jail might have.)

It's not as if you say, Well, this person was convicted but under the wrong statute.

(Reference to the Espionage act)

So there are people who should argue that you should never use that statute because it would become like the Official Secrets Act.

I don't buy that theory, but I do know you should be very careful in applying that law because there are a lot of interests that could be implicated in making sure that you picked the right case to charge that statute.

Me: I noticed that I didn't understand that phrase at the time he said it but looking at it in print I agree with Bilmon; its gibberish.

I also believe Bilmon when he says that based on the case Fitzgerald already has there is a better case for conviction under the Espionage act than some cases other prosecutors have already won. I hope Fitzgerald plans to bring such charges, but I am afraid he is going to take a dive.

So, I've quietly reading and listening. And this is what I've learned. The CIA, in a snit, wants to do what the Administration has been accused of doing to Wilson: discredit the effort leading up to TWOT. How to do that? Plame recommends sending Wilson to Niger to gather some insight. Which he does, then frames his report to match the intent of the mission (lies) and credits Cheney for sending him (lies) and clumsily goes about trashing the administration. Journalists, investigating the Cheney connection and the administration, discrediting the Cheney connection somehow disclose the truth about the CIA/Plame/Wilson gammit, are accused by the CIA of stumbling across the line of classified information. A two year, nearly million dollar investigation by a competent special prosecuter (rarity?) resolves that Plame did send Wilson, but very little else was happened that was illegal, which many had figured from the beginning. Wilson, meanwhile, continues to prove he is a pompous ass and Libby seems to have screwed up in an arena that he should have known better. The spider gets a small fly.

Blogbudsman- The claim that Cheney didn't know who Wilson was, or who sent his has already been rendered inoperative.

Your talking point that Wilson lied saying Cheney sent him was discredited long ago, but now it sounds even stupider than when it was merely known to be a lie, rather than a lie supported by more lies.

As far a Plame sending Wilson, not only does the CIA say otherwise, but Fitz had this to say:

QUESTION: (OFF-MIKE)

FITZGERALD: What is set forth is a belief on his part that she played a role in the trip, and that is set forth in the indictment.

Whether that belief is 100 percent, 100 percent false, or a mixture of both, is, sort of, irrelevant. But it does set forth in there that he had that belief that she was involved in the trip.

What Frank said. Libby will spend a million on his defense, knowing he will be somehow compensated;will go through the motions of a trial, knowing he will be pardoned. No lessons will be learned, for the attention-grabbing word "treason" will not be used.

As no lessons have been learned in the last thirty years, as alternate administrations have used the National Security apparatus as a personal toy and political weapon, for partisan advantage and financial gain, with the open aims of weakening any oversight and institutional restraints. Watergate & Iran/Contra taught no one to keep the CIA free from WH pressures and manipulation; Grenada, Lebanon, Panama only encouraged Iraq II.
Hunt,Liddy,Haldeman,North,Poindexter,Abrams, Weinberger...Libby...were all cowboy rogues off the reservation;the Party of Reagan remains true and pure.

There is a pattern that Fitzgerald, along with the press and most American people, would rather not illuminate, so scapegoats and fallguys and distracting charges are again the rule. The nature and origin of the pattern is profoundly difficult to explain, but the corruption is so deep and wide it controls the heart of a mostly honorable professional prosecutor from Illinois.

I would be very, very wary of speculating about what Fitzgerald will or won't do. I thought this after the press conference -- it's easy to predict the actions of partisans, but it's hard to predict the actions of someone who is actually concerned with following the law, especially the application of the law is tricky, and when we know so little about the evidence he has. I think so even more now, having read the wildly divergent predictions of smart people I respect.

Geez, everybody wants Armageddon, but all we ever get is whimpering. Let's hope the wingers are as disappointed in their latest hopes of having The Final Showdown as some of the other faith seem to be.

It's a beautiful fall day in Washington. Rode my bike in to work, nearly fell off when the iPod shuffled up 'Gas Music from Jupiter,'* and the line "a lettuce and a frog shall rule over you" came by. How did they know?

Then rolling along the river past the Watergate, I drew 'Stella Blue' from a concert I went to in Seattle: "it all rolls into one, and nothing comes for free, there's nothing you can hold for very long . . ."

* I'm quite confident I know exactly what R.A.L. said to myself when he read those words: "Indeed."

Frank, Plamegate isn't a lonely little data point with no context: we have Fitzgerald's previous cases to look at. He has a record of going after corruption and busting it. He has a record of going after terrorists and busting them.

That being said, I don't share the belief I still see in other comments and other blogs that Fitzgerald might work his way up the ladder to taking on Cheney.

He no longer has a GJ to vote on additional indictments. I'm not sure at this point how he would bring an indictment against Rove. Even if he keeps working the case with the next GJ, he'd have to bring them up to speed, and that could take weeks. And he said, flat out, that the investigation part is over. No more GJ witnesses, no more GJ testimony.

Now, maybe additional indictments can and will issue in the course of a trial, as a result of testimony and plea bargaining. That's happened in Fitzgerald's other cases. But nobody's said anything yet about when the trial will start - it could be months. If there even is one; if Bush doesn't pardon Libby beforehand.

There are so many wildcards. Congress might conduct its own investigation, if the Dems gain control of House or Senate. The Wilsons might file a civil suit, which would start a new round of discovery, depositions, etc. (Maybe one reason Bush wanted Miers on the SCOTUS was to make sure a vote to quash a civil suit would go his way.)

About the only thing I am sure of at this point is that Fitzgerald will not indict Dick Cheney.

CaseyL: I agree about the wildcards but I'm not sure why you headed your post with my name. I don't dispute that Fitz has an amazing record, I just have some doubts about him doing as thorough a job here as I believe the country needs.

He's being cast as the hero of the hour. I haven't seen anything heroic yet though.

Rove wins this won guys. He is much smarter than Fitzgerald and is playing him like a fiddle.

Why do you think Fitzgerald thinks that the public interest will be vinticated if he never brings any charges on the original crime? Because Rove has, I would bet, manipulated him into a focus on his own interests as a prosecutor and to conflate that with the national interests.

The national interests demand a prosection for the actions that diminished our national security. But this would be damaging politically to the Republicans. So Fitzgerald with his ego at stake is being steered away from it.

Either that or Fitzgerald shares the conservatives problem of being unable to seperate their own interests from the national interests himself. Either way, the nation loses.

He struck me as a completely straight, decent, and principled person, who is political in the broadest and best sense (concerned with the nature and preservation of the structures that allow us to live as one society), and for that very reason recognizes that, given his role, he cannot be political in the narrower, partisan sense.

I agree. This investigation was a class act from start to finish (?); and he certainly lived up to his billing:

WASHINGTON — When defense attorney Ron Safer heard that Patrick Fitzgerald would lead an inquiry into the leak of a CIA operative's name, his first thought was that, from the Bush administration's perspective, "they could not have picked a worse person."

Safer, a Chicago lawyer who has watched Fitzgerald since he was named U.S. attorney there in 2001, says the prosecutor "will bring to this the same energy and aggression that he does to every other project he undertakes."

Safer is a former ADA, most famous for prosecuting Larry Hoover and the rest of the Gangster Disciple leadership (http://www.streetgangs.com/topics/1999/110199cgdisc.html). (I know Safer slightly, and respect his judgement wholly.) Note that Safer later faults Fitzgerald for trying to expand the read of the mail/wire fraud statutes in some creative ways -- a criticism with which I also agree.*

von

*I may be biased, however, since I've defended clients against creative uses of the mail and wire fraud statutes in the civil RICO context.

pundits try to figure out what to make of someone who is simply not interested in what they say about him: it seems to leave them completely at sea.

This is the most interesting and admirable aspect of Mr. Fitzgerald to me. Most prosecutors at his level are considerably more self-dramatizing. If he's as taken with himself as most of them, he's remarkably skilled at hiding it.

He exudes fairness. It's no longer hard to imagine how he keeps his grand jurors from talking.

Re: Fitzgerald and a new GJ. The indictment of Libby is damning. I don't know what information he has (Libby's new lawyer is probably digging through it as we speak), but that is a LOT of specific information given Libby's obstruction.

If I was Libby's lawyer, the first thing I'd do is start seeking a deal -- Fitzgerald seems to have a very solid case, and I sincerly doubt Fitzgerald has any interest in mitigating the possible sentence for Libby.

As for the new GJ -- like the man says, at this point the bulk of the investigation is complete. He has reams of testimony, metric tons of subpoena'ed records, and probably a very accurate timeline of who did what and where.

There's two places you can go from that statement: Either Fitzgerald feels that Libby is the only one he can make a solid case against, OR Fitzgerald feels confidant that he has the evidence to convince a sitting GJ to indict quickly.

I'm leaning a bit towards the latter -- Luskin appears to be under the impression that Fitzgerald is still mulling over charges for Rove, and the indictments Libby is facing are certainly the sort that would encourage a man to seek a deal.

For all I know, Fitzgerald might be confidant he can get additional charges against either -- or both -- or someone else. Rove and Libby are probably aware of it, though.

IIRC, in Illinois, he rather slowly and methodically worked his way to the top -- flipping folks as he went. The problem with that is us spectators can't tell where the chain ends -- at one person or at 10.

"Fitzgerald appeared set to charge Rove with making false statements until the White House deputy chief of staff provided new information on Tuesday that gave the prosecutor what two people described as "pause." It is unclear what information Rove turned over." ...WaPo

If Fitzgerald had a rock-solid case

(and Rove may have provided testimony Tuesday that made it solid, ensuring that an indictment of Rove would shatter the nation; let this not be seen as Rove refusing to take a fall, but as Bushco upping the ante, increasing the stakes, going all-in)

that implicated both the Vice-President and the President in felony conspiracy to damage national security, would not even the most fair-minded, honest prosecutor hesitate?

Are we all certain that we would want to know if Bush and Cheney were intimately involved in the Plame Outing and the subsequent coverup? Do we understand the price?

Yet this kind of high-stakes intimidation has long been the style, method, and most powerful tool. "Rule or ruin" with the capability and willingness to actually ruin usually works quite well.

But it is still corruption, it is Fitzgerald's self-image, his ego that is being massaged. He must decide what is best for the country, what is the right thing to do. Pure Ego. And a corruption.

In Billmon's previous post he argues that Fitz should have, on the evidence in the indictment, have charged Libby with the underlying crime, and is disappointed in the prosecuter for not having done so.

rilkefan: Given what I know of Fitzgerald, there's only two possible reasons he wouldn't have charged Libby with the underlying crime if he had the evidence:

1) He didn't think he could prove it in court (most likely due to semi-successful obstruction of justice on Libby's part).
2) He plans to, but doesn't consider Libby the most culpable party, and is going to see if Libby rolls now that Fitzgerald has shown he means business.

So I've seen speculation that F thought the one act might require a leak to someone who would use the info against the US directly, and the second act doesn't apply because Plame hadn't worked outside the country for 6 years, longer than the 5 required.

Which might go to Fitzgerald's interest in the Italian forgeries. Trying to demonstrate that the administration's motive was to weaken Plame and her anti-proliferation network, allowing nuclear material through to Iran in order to have an excuse for war.

Not too long ago Billmon raised the possibility that if Fitzgerald does plan on sticking around a while longer, he might have a harder time of it. I wonder whether the Bushies would have the balls/stupidity to fire him at this point.

I also wonder if there is any chance Libby will work out a guilty plea deal, in order to avoid a trial and the attendant public embarrassment of his masters.

Bob
If Fitzgerald's press conference was a performance, one has to admit that it is not only worth an Oscar, but should be put in the greatest performances of all times. And while Digby does give the initial impression that Fitz has done something wrong, he closes out his post with this

Luskin is a defense lawyer. It's part of his job. I'm not criticising him for it. But, he and Rove are working overtime to get Rove out of this jam -- and prepare the ground for a big PR push if Rove is indicted --- and all reporters should think carefully about credulously repeating what they are saying.

You'd think Luskin would be very careful before he charges Fitzgerald with unauthorized discussions of the case with Bush's lawyer. If it isn't true, Fitzgerald might just get a little testy about it.

Remember that it was Luskin's representations that Cooper took to tell him he was well and truly released from his vow of silence. Odds are that this is simply another ham-handed attempt to control the news cycle, not realizing that controlling the cycle is not the same as preventing the flush.

Michael Isikoff has accused Fitz of a major crime in print. Fitz will deny it, with support from Sharp and whoever else is necessary and Mikey will stand by his story.
Who, in the cesspool that is DC has to win here and who to lose? Fitzgerald will never suffer discomfort for his deal. As usual, the politicians and presscorps will know the truth, and not bother with us in flyover country. Will Mikey quietly leave Newsweek for printing a lie? I don't think so.

Rove will not be charged. Fitzgerald will return to Illinois and with massive help from the national party, take Obama's Senate seat in 2010, ending Barack's political career. Non-strident Democrats will say, "Well, at least it was an honorable, moderate Republican."

I don't think Patrick Fitzgerald is from Illinois. He's some sort of Eastern Yankee. If there is a Republican Senator in the future, it is Jim Oberweis, a milkman of sorts, hated by the Republican establishment in IL: They chose Allen Keyes (not from IL) to run instead of Oberweis.